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Jermain King v. Sheriff of Schuyler County Don L. Schieferdecker

August 1, 2011


The opinion of the court was delivered by: Sue E. Myerscough, U.S District Judge.

E-FILED Monday, 01 August, 2011 05:08:51 PM

Clerk, U.S. District Court, ILCD


This cause is before the Court on the Motion for Summary Judgment (d/e 107) filed by the following Defendants: (1) Illinois Department of Human Services (Department); (2) Tanya Clairmont*fn1 , a Security Therapy Aide II; (3) Chris Clayton, an Internal Security Investigator; (4) Joe Dorsey, a Security Therapy Aide IV; (5) Joe Hankins, a Public Service Administrator and Shift Commander; (6) Sandra Hays, a Security Therapy Aide IV; (7) Michael Howard, a Security Therapy Aide; (8) David Jacobsen, a Security Therapy Aide; (9) John Jeslis, a Security Therapy Aide II; (10) Dave Kunkel , a Security Therapy Aide IV; (11) David Kurfman, a former Security Therapy Aide;

(12) Eugene McAdory, Chief of Security (since November 2007) and a Public Service Administrator VI, Shift Commander (May 2006 to November 2007); (13) Darrell Sanders, Chief of Security (until November 2007); (14) Gregg Scott, Security Therapy Aide II (from October 2006 to March 2007) and a Security Therapy Aide IV (from March 2007 to March 2011); (15) Janie Volk*fn2 , a Public Service Administrator, Shift Commander; and (16) Tarry Williams, Security Therapy Aide IV; (the Individual Defendants) (all collectively referred to as the Department Defendants). For the reasons that follow, the Department Defendants' Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART.


In July 2008, Plaintiff filed a Complaint against the Department Defendants, as well as additional defendants*fn3 , in the Northern District of Illinois. In September 2008, the case was transferred to this district.

In May 2009, Plaintiff, pro se *fn4 , filed a Verified First Amended Complaint (Amended Complaint). Plaintiff, an African American male, worked for the Department at its Rushville Treatment and Detention Facility (Facility). The Facility is a secure facility housing convicted felons who have been released from prison but have been determined by a court to be sexually violent persons.

Plaintiff alleged that he spoke out about the disparity in treatment of African American staff by the Department and filed two complaints with the Bureau of Civil Affairs (BCA). According to Plaintiff, the BCA is the internal investigation agency that investigates corruption and discrimination within state facilities.

Plaintiff alleged the Department Defendants retaliated against him in various ways, ultimately leading to his wrongful discharge. Plaintiff also alleged that certain Department employees falsely reported to the Schuyler County Sheriff's Office that Plaintiff was bringing drugs into the Facility. According to Plaintiff, the Schuyler County Sheriff and the Deputy Sheriff arrested Plaintiff on an outstanding warrant and subjected him to a full body strip search.

Defendants filed a motion to dismiss. Following the Court's September 2009 Opinion, the following claims remained against the Department Defendants: (1) Count I, a retaliation claim against the Department under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3; (2) Count III, a § 1983 claim against the Individual Defendants for retaliating against Plaintiff for exercising his First Amendment rights when he spoke out about the treatment of African American employees at the Facility; (3) Count V, a § 1983 claim against Defendants Scott, Clayton, and Williams for violating Plaintiff's right to equal protection under the Fourteenth Amendment; (4) Count VI, a state law claim against the Individual Defendants for intentional infliction of emotional distress; and (5) Count VII, a state law claim for gross negligence against Defendants Clayton and Sanders.

In April 2011, the Department Defendants filed a Motion for Summary Judgment. In May 2011, Plaintiff filed a memorandum in response. No reply memorandum was filed.


This Court has subject matter jurisdiction because Plaintiff asserted claims based on federal law. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States"). Venue is proper because the events giving rise to the claim occurred in Schuyler County, Illinois. See 28 U.S.C. § 1391(b) (a civil action where jurisdiction is not founded solely on diversity of citizenship may be brought in a judicial district where a substantial part of the events or omissions giving rise to the claim occurred).


Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also, Fed.R.Civ.P. 56(c). A moving party must show that no reasonable fact-finder could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1139 (7th Cir. 1997).

The movant bears the burden of establishing that there is no genuine issue of material fact. Celotex Corp, 477 U.S. at 323. If the movant meets this burden, the non-movant must set forth specific facts demonstrating that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 252.

In deciding a motion for summary judgment, a court can only consider sworn statements based on personal knowledge and other evidence that would be admissible at trial under the Federal Rules of Evidence. Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002). The evidence is viewed in the light most favorable to the non-movant and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

Summary judgment is inappropriate when alternate inferences can be drawn from the evidence, as the choice between reasonable inferences from facts is a jury function. Id. However, conclusory allegations do not create issues of fact which forestall summary judgment. See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 740 (7th Cir. 2006) ("it is . . . axiomatic that a plaintiff's conclusory statements do not create an issue of fact").


A. Plaintiff's Objections to the Statement of Undisputed Facts In April 2011, the Department Defendants filed a Statement of Undisputed Facts in support of the Motion for Summary Judgment. In May 2011, Plaintiff filed a response to the Motion for Summary Judgment and a response to the Statement of Undisputed Facts. Despite seeking and obtaining an extension of time to file a reply to Plaintiff's Response to the Statement of Undisputed Facts, the Department Defendants have not done so.

In his response to the Statement of Undisputed Facts, Plaintiff objects to a number of the "undisputed facts." One of the objections is that the cited source of the facts was not an affidavit as required by 28 U.S.C. § 1746. However, on May 18, 2011, this Court entered a text order denying Plaintiff's motion to strike the affidavits on this basis. Therefore, this objection is overruled.

Plaintiff also objects to numerous facts on the basis that the cited source is not an affidavit as required by Federal Rule of Civil Procedure 56. Rule 56(c)(4) requires that all affidavits "used to support or oppose a motion for summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affidavit or declarant is competent to testify on the matter stated."

Fed.R.Civ.P. 56(c)(4); see also Luster v. Illinois Department of Corrections, F.3d n.2, 2011 WL 2857262 (7th Cir. 2011). In examining the affidavits, this Court will only consider the facts contained in the affidavits that comply with Rule 56(c)(4).

Plaintiff objects to statements of fact that cite the two documents attached to the Motion, including an Employee Discipline Log (Exhibit A), and an April 26, 2007, Memorandum (Exhibit B). These documents have not been authenticated in any way. Therefore, the Court will not consider them.

Plaintiff also objects to the documents attached to the Individual Defendant's affidavits. Those documents include: (1) incident reports,

(2) disciplinary records; (3) pre-disciplinary meeting results; (4) and a Division of Internal Affairs investigation report prepared by Defendant Clayton. Plaintiff asserts that the documents do not qualify as business records under Federal Rule of Evidence 803(6).

A court may only consider admissible evidence when assessing a motion for summary judgment. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). The documents to which Plaintiff objects are admissible for a number of reasons.

First, the documents, with the exception of the Investigation Report, constitute business records. Federal Rule of Evidence 803(6) provides an exception--commonly referred to as the business records exception--to the hearsay rule for records of regularly conducted activity. See Collins v. Kibort, 143 F.3d 331, 337 (7th Cir. 1998). Documents are admissible as a business record if the party attempting to admit the evidence demonstrates that the document was "kept in the course of regularly conducted business activity, and [that it] was the regular practice of that business activity to make records, as shown by the testimony of the custodian or otherwise qualified witness." Id. (internal quotation marks and brackets omitted.) The witness establishing the foundation need not have personal knowledge of the entries in the records or be the person who prepared the documents. Alexian Brothers Health Providers Ass'n, Inc. v. Humana Health Plan, Inc., 608 F.Supp.2d 1018, 1023 (N.D. Ill. 2009). The witness need only have "'knowledge of the procedure under which the records were created." Collins, 143 F.3d at 338.

With the exception of the Investigation Report, the affiants

authenticating the remaining documents testified that those documents were true and accurate copies and were kept in the course of regularly conducted business activity. The affiants also provided statements from which it can be inferred that it was the regular practice of the Department to make those records. Therefore, the incident reports, disciplinary records, and presdisciplinary meeting results are admissible.

In addition, all the documents--including the Investigation Report-- are admissible to the extent they are not considered for the truth of the matter asserted therein but rather to support the Department Defendants' assertion that they acted in good faith and were not motivated by an improper purpose. See Traum v. Equitable Life Assurance Society of U.S., 240 F.Supp.2d 776, 781 (N.D. Ill. 2002) (personnel file was admissible to the extent the file was "cited to show what information was before defendants or that defendants took certain action as to the claim"); Lee v. Anthony Wayne Services, 2005 WL 1459440, *3 (N.D. Ind. 2005) ("Documents are also not hearsay where they are not tendered to prove the particulars of their contents but to help establish that the defendant was motivated, in good faith, to discharge the plaintiff for reasons other than her sex, race, or disability"). Therefore, Plaintiff's objections to the admissibility of the documents attached to the affidavits, for purposes of summary judgment, are overruled.

B. The Relevant Facts

The following facts are taken from the Department Defendants'

Statement of Undisputed Facts, Plaintiff's deposition, and Plaintiff's Affidavit, which was a part of his Amended Complaint.

In January 2005, Plaintiff was hired as a Security Therapy Aide in Training and then a Security Therapy Aide I at the Joliet Treatment Detention Facility. In March 2006, Plaintiff learned that the Sexually Violent Person's Treatment and Detention Center would be moved to Rushville, Illinois. In May 2006, Plaintiff relocated to Rushville to work at the Facility.

According to Plaintiff's Affidavit, after relocating to Rushville, Plaintiff began to speak out about the disparity of treatment between the African American staff and the Caucasian staff and submitted several written complaints to Defendant Sanders, two other individuals who are not defendants, and the BCA. Plaintiff filed complaints to the BCA in January 2007 and June 2007.

Plaintiff alleged he suffered retaliation as evidenced by certain actions of the Department Defendants. A summary of these events follows.

1. June 2006 Denial of Promotion Plaintiff claimed he was denied a promotion to the Security Therapy Aide II position in June 2006 because of his race. He admitted at his deposition, however, that the promotions were automatic step promotions by Central Management Services (CMS), unless the person's disciplinary record was reviewed and it was recommended he not get the job. Plaintiff further admitted that the only Caucasians promoted ahead of Plaintiff had greater seniority than Plaintiff.

2. September 16, 2006, Incident*fn5 On September 16, 2006, Defendant McAdory wrote an incident report asserting that Plaintiff abandoned his post. Plaintiff was afforded a predisciplinary meeting at which he was allowed to rebut the charge.

Defendant Volk, the hearing officer, found the charges substantiated and recommended a seven-day suspension. Defendant Sanders concurred with the recommendation. At his deposition, Plaintiff testified he believed Defendants Volk and Sanders engaged in making false reports against him.

3. Actions Relating to Plaintiff's Fall 2006 Promotion In the Fall of 2006, Plaintiff was promoted to a Security Therapy Aide II due to his seniority. Plaintiff testified he did not receive the uniform and "chevrons" that would denote he was promoted. He also claimed he did not receive greater responsibility. According to Plaintiff'sdeposition testimony, Defendant McAdory was responsible for making sure that Plaintiff got his uniform, but Plaintiff admitted McAdory did not know Plaintiff did not get his uniform.

Defendant Dorsey evaluated Plaintiff. In his affidavit, Defendant Dorsey refers to the evaluation as a December 2006 evaluation. However, the evaluation document to which he refers (Exhibit 8 of Plaintiff's Amended Complaint) is dated February 2007. In his affidavit, Dorsey stated he rated Plaintiff as "meeting expectations" in four categories but that he "needed improvement" in the remaining six categories. Dorsey explained his ratings were because of Plaintiff's disciplinary suspensions, issues with uniform compliance, and failing to be on time for shift briefings. In February 2007, Dorsey recommended Plaintiff be demoted. Plaintiff was demoted to Security Therapy Aide I, but the record is unclear when this occurred.

4. Counseling for Misuse of Sick Time In either October 2006 or September 2007, Defendant Volk counseled Plaintiff for misusing sick time. Plaintiff denied that he misused sick time.

5. November 11, 2006, Incident Defendant Dorsey submitted an incident report asserting that Plaintiff was found asleep on post on November 11, 2006. Plaintiff was afforded a predisciplinary meeting at which he was allowed to rebut the charge. The evidence supporting the charge included a camera review report.

Defendant Volk, the hearing officer, found the charges substantiated and recommended a 15-day suspension. Defendant Sanders concurred with the recommendation. In his deposition, Plaintiff admitted that he did not know of any Caucasians accused of sleeping on duty who were treated better than Plaintiff.

6. November 24, 2006, Incident In November 2006, Defendant Jeslis submitted an incident report asserting that Plaintiff violated his perimeter duty on November 24, 2006. According to the Department Defendants, Plaintiff stayed in the Sally Port for nearly four hours and did not do his perimeter patrol. The first report prepared by Jeslis could not be found, and Defendant Volk told Defendant Jeslis to write another one. Defendant Jeslis was suspended for three days for failing to file a timely report.

Plaintiff testified that Defendant Jeslis submitted a false report. Plaintiff testified he believed Defendant Jeslis' actions were because of Plaintiff's race or for retaliation because the day before Plaintiff's incident, Jeslis allowed a white employee--Security Therapy Aide Drennan (no first name given)--to sit in the control room when it was cold outside. Drennan was not disciplined. In his own affidavit, Defendant Jeslis explained that Drennan was allowed to sit in the control room not because it was cold, but because Jeslis was providing him training.

Plaintiff was afforded a predisciplinary meeting, at which he was allowed to give rebuttal. Defendant Volk, the hearing officer, found the charges substantiated and recommended a 14-day suspension. Defendant Sanders concurred with the recommendation.

7. December 24, 2006, Incident On December 24, 2006, Plaintiff was accused of being asleep on duty. The charge was ultimately ...

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